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May 12, 2010

Another notable lethal injection opinion from the Sixth Circuit on Ohio's new one-drug protocol

As regular readers know well, Ohio's recent experience with the administration of capital punishment has become a monthly saga of challenges to Ohio's new execution protocol, followed by appeals, stays denied, and then sometimes notable opinions approving or lamenting Ohio's tinkering with the machinery of death. As detailed in this new opinion in from a split Sixth Circuit panel, this saga can makes for good blog copy.

From the majority opinion authored by Chief Judge Batchelder:

While Beuke’s delay may not be as egregious as that of the defendant in Workman, it nonetheless “could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Beuke has been taking anti-seizure medication for several years. Ohio’s revised method of execution that includes Plan B as a back-up was instituted in November 2009. Beuke’s current execution date of May 13, 2010, was also set in November 2009. Nevertheless, he waited until March 17, 2010, to move the district court to intervene and, waited until only one week prior to his execution date to amend his complaint to bring the particularized challenges to Plan B that he is currently asserting on appeal. This constitutes unnecessary delay, and Beuke has failed to overcome the “strong equitable presumption” against the grant of his stay request.

From the dissenting opinion authored by Judge Martin:

This is another in the long line of cases that have developed in the short period since the State of Ohio drastically altered its lethal injection protocol in November 2009. Though, as far as I know, Ohio has not yet encountered problems in carrying out executions under its latest protocol, the fact remains that Ohio is blazing a very new trail. Only time will tell if the changed protocol actually addressed the problems alleged to have surrounded the prior three-drug method of execution....

But, in the Sixth Circuit, there is no time — or at least no time like the present. We do not permit time for sufficient research to produce the record needed to make an informed decision. Instead, we encourage Ohio to continue its one-a-month execution march. If the science does not yet exist when an inmate’s appointed time comes, we say “alas, you have not shown a likelihood of suffering, maybe the next guy can.” And then we say the same thing the next month. The upshot is that an inmate staring down the barrel of the new protocol will only be able to show a likelihood of unnecessary suffering if someone ahead of him has suffered unnecessarily. Until the unthinkable happens, we charge ahead unthinking. As the district court noted, this is the functional equivalent of human experimentation. We tell Ohio to just keep going until an experiment goes horribly awry, as it did in the case of Romell Broom. Only then will we halt our rush to a result and remember that our true business is reasoned constitutional consideration.

Comments

Ken F. Murray, attorney for the appellant, once worked as a psychologist, or social worker, specializing in substance abuse. That implies he would or should know that there is no habituation of the brain breathing control center to the lethal dose of a sedative (Ohio RPC 3.3 (a)(1)).

Unfortunately, Judge Martin is wasting his time if he thinks the Sixth is going to stop to let an inquiry happen into the new procedure. My sense is that the majority of the Sixth's view was that the old method was working just fine (which was false) and that the new method essentially gives the anti-death penalty advocates what they were asking for (which is true).

I don't have a real problem with the new procedure, though much of the Sixth's recent death penalty jurisprudence - especially the procedural gymnastics designed to avoid any inquiry into it - strikes me as smarmy and even a little, well, bloodthirsty.

Posted by: Gregory | May 13, 2010 9:46:05 AM

Beuke was executed. Justice, a long time coming, has been served.

Gregory, I don't think the Sixth Circuit is avoiding inquiry--it's telling DR inmates that they need to file their claims sooner.

Posted by: federalist | May 13, 2010 11:05:34 AM

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